Fears of An Article V Convention
Article V (United States Constitution)
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
I have gotten many questions regarding fears of an Article V Convention, where the States’ legislatures call for a convention. Many criticisms swirl surrounding this issue. One of the most vehement oppositions comes from the John Birch Society directly and through their President John McManus (read the letter here). In response to prior calls for an Article V convention regarding a balanced budget amendment, the John Birch Society produced a video (click here to watch) to distribute to States’ legislators to stop any more calls for such a convention. Their stated fear is that any open-ended convention would end in a “runaway” where control would surely be lost and the Constitution itself is threatened.
I want to respond directly to the Birch Society, and in turn, respond to others who object to the consideration of an Article V Convention. The Birch objection (as I’ll call it from here forward) surrounds several points. One is that there is no way to control the content of the Convention, to limit the topics and amendments to be discussed. This is unequivocally true. In the past, most petitions from States’ legislatures have attempted to restrict the topic of a Convention, but the Constitution provides no such limitation. In short, anything is on the table.
Another Birch objection is that the procedures and voting rights are not defined. This is also true. The Constitution does not specify the representation at the Convention. There is nothing, they say, to stop the Congress from giving unequal representation at the Convention. Nor, does it prevent Congress from leaving some States’ out completely, or to have the representatives come from special interest groups only, like only from a majority party.
A last Birch objection that I’ll cover is, they believe, that any Convention is sure to be a “runaway” convention, just like the one in 1787. The only Convention in our history was convened to revise our original Articles of Confederation and would have required unanimous consent on the part of each of the thirteen States’ legislatures. At the Convention, however, the mood shifted to complete replacement of the original Articles. Further, in order to assent, only three-quarters (not unanimity) was required. The Birchers opine that it is just a “miracle” that the end result of such a “runaway” Convention was the genius document that we today call the Constitution.
The Birch objections are strong and are widely held. I encourage anyone who has read this far in this article to watch their video. I want a full and open dialogue on this critically important topic. Many others have written on this topic and I will not attempt to go through more.
It is clear that an Article V Convention is a risk, but many of us strongly believe that a completely unrestrained Federal government is a much larger risk. Congress could simplify and stabilize the amendment process by proposing the amendments themselves, but it is enormously unlikely that they would do anything to limit their own power. It is even less likely that the Supreme Court would reverse its position that the General welfare clause, the Commerce clause, and the Necessary and Proper clause allow unlimited range for legislation and regulation for the Federal government. It is unlikely that without Constitutional amendment that we will ever get clarification of limitation to Federal power.
I am open to alternative ideas, but I specifically reject the idea that elections will fix this problem, which is the Birch Society’s answer. This crisis is fundamentally NOT a problem of policy, where the makeup of the people in power differentiates anything. We had marked incumbent turnovers in 1994, 2006, and 2008, but no discernible difference when it comes to Federal power. All we got was a slightly different set of policy goals that sits on top of the unlimited Federal power base. We don’t have a crisis in policy, but a crisis in government itself. As such, the definitions of government itself lies in the Constitution, as this is the document that defines the rules of the game. Therefore, it must be amended; there is simply no other way.
The Birch Society and many others state that we should not seek to amend the Constitution for “light” reasons. I strongly agree. I strongly agree that we should not attempt amendment as a way to simply bypass Congress when we’re not happy with specific policies. But, our problem now IS a fundamental crisis in our form of Government, not about a specific policy. The Federal government, through Congress and the Supreme Court, itself has redefined the game without our permission. Their actions violate the fundamental design of our Republic, that of strictly defined roles of the Federal government as specified in our current Constitution.
They have bypassed and ignored completely the Ninth and Tenth Amendments, that specify the balance of rights and powers between the Federal government, the States’ government and We the People. Understand, that without the Ninth and the Tenth Amendments, then our form of government is markedly different. Also, understand that these critical parts of the Constitution are Amendments themselves, they were not part of the original. Additionally, the Fourteenth Amendment redefines the relationship between government, the States, and We the People. It is right and proper for the amendment process to be used to redefine these relationships, especially when they become unclear.
Our present crisis in government is as important as any in our history and we need to understand this point and, further, we need to stand up with courage and conviction and correct the problem. We owe it to future Americans and to the many people that have come before us in our Republic and have sacrificed themselves to defend it. Put simply, it is our turn to serve.
Next, we should restate our fundamental faith in our form of government where the people rule. Here in Arkansas our motto says the same, ‘regnant populus’. We specifically reject oligarchy as a form of government, where the few rule. Distributed, non-concentrated power is the key to liberty, where the marketplace of ideas flourishes. This is all the more true when it comes to our form of government, which is unlike any in the world. It is built to operate from the local level upwards, like a pyramid, where the most power lies at the local level, where basic functions, like schools, fire and police protection, industry and entrepreneurship flourish. As the pyramid of government builds vertically, the power base shrinks the farther one gets from the local level. As oligarchic forms of government (rule by the few) becomes necessary due to size, the allowed power given to those few shrinks. Fundamentally, our system of government was designed to be a “bottom up” approach.
Yes, it is inefficient in many ways, leading to marked differences from community to community in basic services. But, I don’t view these differences as a bad thing. These differences are the fundamental engine of progress in our society. They are the many laboratories in the marketplace of ideas. They represent the diversity we need to allow liberty to exist and thrive. The oligarchists view this as bad, that their ideas of central control will lead to greater efficiency and equality. Therein lies a fundamental difference, which is unlikely to be resolved through debate. Therein lies a difference of core principles.
So, ask yourself, what do you think is right? Our Founders strongly believed in the distributed form of government, with faith in the citizens to find their own solutions, sometimes through their local governments and sometimes just leaving things alone and allowing the individuals to find their own solutions or to voluntarily and spontaneously assemble themselves based on their own common interests. Our current twisted form of government is oligarchy and it is solidifying its power base at the Federal level. Our current form of government believes that the individual citizen and the small communities are just unable to solve their own problems, or that having many different solutions means that we have inequality, which should not be allowed to exist.
So, ask yourself, what do you think is right?
We are at a crossroads in history, I believe. The decisions we make and the actions we take at this particular point will be defining events for the continued success or failure of our Republic. Our Constitution defines our Republic at the most fundamental level, which is the relationship between Government and We the People. Our Constitution is currently contorted and defended by our Federal government as a form of oligarchy, where Federal power reigns supreme.
If you believe that individual liberty and government at the most local level possible is what makes us great and is the true form of government spelled out in our present Constitution, then you are required to redefine how our Federal government sees itself relative to the Constitution itself. This is not a policy difference, this is a fundamental difference. You must support amending the Constitution to clarify the relationship between you and your government.
To this end, the only viable option, and I stress ONLY, is to seek amendment through an Article V Convention, no matter the risks. You must have faith in the system of self-government and the judgment of reasonable people. To the Birch objections, it is not a matter of luck or divine providence that the only Constitutional Convention in our history, a “runaway” to use their assessment, led to the most stable Constitution in human history. This is not a matter of luck; this is a matter of principle. It is a matter of principle, where liberty requires distributed government, where people will choose liberty and protect it when given a chance.
If the Article V convention becomes another “runaway” leading to a form of government that we don’t recognize as legitimate, if it leads to a government where oligarchy is the preferred form, if it leads to a government where the people are not trusted with liberty, if it does not reflect the truth that all power in government is loaned, voluntarily, from We the People, my answer is that the “runaway” convention simply gave us what we have right now as our form of government: oligarchy. Nothing will have changed.
We have nothing to lose and everything to gain.
